State v. Northwestern Construction, Inc.

MATTHEWS, Justice,

joined by RABINOWITZ, Chief Justice, dissenting in part.

I dissent from part IIB of the opinion relating to overtime equipment hours. The trial judge made a finding that Northwestern’s damages, including equipment costs, totalled $950,695.00. This is a finding of fact which is clearly erroneous because the contract (by incorporating the Blue Book rates) clearly calls for a 50% overtime adjustment. There is no need to object to an erroneous determination of fact at the trial level as a prerequisite of challenging the determination on appeal. Civil Rule 52(b) is explicit on this point. It provides:

When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment.

Moreover, the court’s calculation of damages for overtime hours is plain error. “Plain error exists where an obvious mistake has been made which creates a high likelihood that injustice has resulted.” Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981). The court used the Blue Book rates in computing Northwestern’s equipment costs, but made a mistake in applying the rates because it did not use the 50% reduction factor called for by the Blue Book. This is an obvious mistake. It is also obviously prejudicial because the state is being made to pay twice what it should have to pay for overtime equipment use. The state should not be required to prove the exact dollar amount of the overcharge on appeal in order to show that an injustice has occurred.